Abstract

Both Justices and scholars have long debated whether the “freedom...of the press” was historically understood as securing special constitutional rights for the institutional press (newspapers, magazines, and broadcasters). This issue comes up in many fields: campaign finance law, libel law, the news gatherer’s privilege, access to government facilities for news gathering purposes, and more. Most recently, last year’s Citizens United v. FEC decision split 5-4 on this very question, and not just in relation to corporate speech rights.

This article discusses what the “freedom of the press” has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom...of the press” has long been understood as meaning freedom for all who used the printing press as technology - and, by extension, mass communication technology more broadly - and has generally not been limited to those who belonged to the institutional press as an industry.

Volokh, Eugene, The Freedom...of the Press, from 1791 to 1868 to Now - Freedom for the Press as an Industry, or the Press as a Technology?. University of Pennsylvania Law Review, Vol. 160, 2011; UCLA School of Law Research Paper 11-10. Available at SSRN: https://ssrn.com/abstract=1802229